Children attain maturity long before they turn 'major': HC allows 17 year old girl to stay with mother of boy she married

Children attain maturity long before they turn 'major': HC allows 17 year old girl to stay with mother of boy she married

Preeti and Anr Vs State of Haryana and Anr

Punjab and Haryana HC

16/10/2020

CRWP-4181-2020 (O&M)

About/from the judgment:

Children these days attain both physiological as well as psychological maturity long before they complete the ages of majority fixed for them by the statute long ago, remarked the High Court in a judgment passed last week.

 

The Court observed that it is scientifically recognized fact that girls tend to be more mature than boys of the same age and that is why the age of majority [for purpose of marriage] is fixed as 18 for girls and 21 for boys.

 

In this case, a girl aged about 17 years, and a boy, had approached the High Court seeking protection. They claimed that they have married each other and that the parents of the girl are against this marriage and is threatening the couple. The court allowed the girl to stay with the mother of the boy till she attains majority.

 

While considering their plea, the judge observed that the statutory scheme on the subject of child marriages lacks clarity and various laws deal with or touch upon aspects pertinent to child marriages but there is no consistency as to the consequences that flow therefrom. The court noted the following: The Hindu Marriage Act marriage between persons who are not major, would be neither void nor voidable. However, the Child Marriage Act makes child marriages void. Protection of Children from Sexual Offences Act, 2012, the court note, makes any sexual act or intercourse by the husband with a girl below 18 years of age would constitute an offence, though she is his wife. Exception 2 to Section 375 IPC states to the effect that sexual intercourse and sexual acts with a wife of over 15 years of age would not amount to rape. In Independent thought vs. Union of India and another [(2017) 10 SCC 800], the Supreme Court held that Exception 2 to Section 375 IPC must be construed and applied by substituting 'eighteen' for 'fifteen' in the context of the age of the wife. The court, thereafter referred to some articles dealing with these issues, observed:

 

"It may be noted that the age of majority was altered once, but as on date it stands frozen at 21 years for boys and 18 years for girls. However. it is an acknowledged fact that children these days attain both physiological as well as psychological maturity long before they complete the aforestated ages of majority fixed for them by the statute long ago"

 

"In any event, science recognizes the fact that children these days mature much faster than they did even a few decades ago. Taking note of this fact, the Parliament itself provided in the Juvenile Justice (Care and Protection of Children) Act, 2015, that it would be within the domain of a Juvenile Justice Board to determine as to whether a child in conflict with the law, who has completed or is over the age of 16 years, should face trial as an adult for the alleged offence. Therefore, a criminal act by a child of or over 16 years of age is now being treated on par with that of an adult, but a similar analogy has not been extended to a civil act of a child of the same age."

 

Girls tend to be more mature than boys of the same age

 

"It is also a scientifically recognized fact that girls tend to be more mature than boys of the same age. That is the reason why there is a discrepancy even with regard to the age of majority stipulated by the statute in relation to the sexes."

 

In facts of this case, the judge observed that a girl who has completed the age of 16 years and 10 months can be said to be of the age of discretion to the extent of at least knowing her own mind and as to what would be in her interest. The court said that the photographs produced by them show them walking around the ceremonial fire and it is stated that they solemnized their marriage in a temple. The court further said:

 

"No certificate seems to have been issued in proof of the marriage but law does not require any such certification. Registration of the marriage, which is yet to be made compulsory, can be effected any time post facto. In any event, it is not for this Court to deny the factum of the marriage performed or affirm the validity thereof. Prima facie, the photographs indicate that there was a marriage ceremony with Saptapadi and the parties thereto."

 

"As on date, [she] is 10 months short of attaining majority. It is not as if, upon the clock striking 12 midnight on the eve of her 18th birthday, [she] would magically assume the mental maturity and wisdom to claim the status of an adult. The age of majority as prescribed must therefore be construed and interpreted in the context of the law for which it is being considered and in a case of this nature, where the minor is certain and unshaken in her opinion and desire, it would not be right and proper for this Court to brush aside her views on the ground that she is not 18 years of age as on date and is only 17 +."

 

The court said that it cannot direct that custody should be forcibly entrusted to her parents against her wishes or that she should be kept in a Protection Home till she attains the age of 18 years. Observing thus, the court, while granting police protection, allowed the girl to go with the boy's mother, and remain with her till she attains the age of 18 years. The court also directed the Child Welfare Committee to 'monitor' her well-being till she attains the age of 18 years.

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